(영문) 부산지방법원 2009.4.30.선고 2008구합2362 판결

A. The Plaintiff is a corporation established for the purpose of railroad transport and railroad agency business, railroad facility operation agency business, harbor transport business, trucking transport business, etc., and the Defendant is a management agency that manages and disposes of the land in question in accordance with Article 6 of the State Property Act and Article 40(1)4 of the Regulations on Delegation and Entrustment of Administrative Authority (amended by Presidential Decree No. 21211, Dec. 31, 2008).

B. On August 22, 1987, the Plaintiff received the approval of the container cY package donation from the Korea Railroad on the ground of the Busan Dong-gu B railway site 997m (hereinafter “instant land”) and donated the container cY (hereinafter “CY”) cY, drainage channel, fence, entrance, lighting tower, etc. to the Korea Railroad.

C. The Plaintiff used CY from December 3, 198 with the approval of the Korea Railroad, for exclusive use of CY, from January 20, 2001, and converted CY created on the instant land into CY with the Korea Railroad on January 20, 201, and entered into a contract to modify the usage fee system, and paid the usage fee to the Korea Railroad.

D. On January 1, 2005, the Korea Railroad Corporation was abolished by the Korea Railroad Corporation Act, and the Plaintiff’s Intervenor (hereinafter “ Intervenor”) was established, and succeeded to the rights and obligations of the Korea Railroad Corporation. From January 1, 2005, the Plaintiff paid the Intervenor the fee for the use of the instant land and used CY by the Intervenor.

E. On March 24, 2008, the Defendant imposed a disposition imposing KRW 677,274,580 on the Plaintiff on the ground that the Intervenor was established, the previous right to use the land was extinguished, the right to use the land was collected, and the Defendant, despite the fact that the Defendant had the authority to use the land, imposed usage fees on the unauthorized intervenors, and that he occupied and used the land of this case without permission from January 1, 2005 to June 30, 2007 (hereinafter “instant disposition”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 3, Gap evidence 12-1, 2, Eul evidence 2 and 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Compensation under Article 51 of the State Property Act shall be imposed on a person who occupies State property. Since the Plaintiff created CY on the instant land and donated it to the Korea Railroad Agency, the person who occupies and uses the instant land is not the Plaintiff but the former Railroad Agency or the Intervenor, and the Plaintiff is merely an occupation assistant, the disposition imposing indemnity of this case is unlawful.

(2) Pursuant to Article 4 of the Korea Railroad Corporation Act, CY is an operating asset in kind invested by the State in kind to the intervenors, and CY is naturally included in the land of this case, which is the foundation of CY. Even if not, since the right to use a site, which is the foundation of CY, is a kind of subordinate right, it is unnecessary to grant separate permission for use and profit-making in accordance with the legal principle that the

The disposition of this case, based on the premise that the intervenor used the land of this case without permission for use or profit-making, is unlawful.

(3) Before the Intervenor was established, the Korean Railroad Agency acquired the right of free use of the instant land from the State pursuant to Article 17 of the Act on Special Cases concerning the Management of State-Owned Railroad. However, the Intervenor comprehensively succeeded to the right to use the instant land pursuant to Article 6(1) of the Addenda to the Korea Railroad Corporation Act. Moreover, according to the “CY CY 3 Complex Operation Agreement concluded with the Korea Railroad Agency on January 20, 2001,” the term of the contract expires without any consultation, this Convention shall be deemed to have been extended every two years automatically. Accordingly, the right of free use of the instant land was succeeded to the Intervenor, and the Plaintiff, who was permitted to occupy and use the instant land pursuant to the Operation Convention with the Korea Railroad Agency, has the right to use the instant land free of charge. Accordingly, the Plaintiff is unlawful on the premise that the Plaintiff was using the instant land without any permission from the Intervenor prior to the occupation and use thereof.

(b) Related statutes;

State Property Act

Article 51 (Collection of Indemnification)

(1) With respect to a person who occupies, uses, or benefits from any State-owned property without permission, etc. under this Act or other Acts (including a person who continues to occupy, use, or benefit from any State-owned property without permission, etc. for lease, use or profit-making after the period of permission expires) and who continues to occupy, use, or benefit from the State-owned property without permission, etc., an indemnity equivalent to 120/100 of rent or rent for the State-owned property shall be collected under the conditions as prescribed by the Presidential Decree.

(1) According to the resolution of the State Council, the right to manage and dispose of the instant land is transferred to the Korea Railroad as one of the measures to improve the port operation around January 28, 1969, to the Ministry of Transport and Maritime Affairs through the procedures for administrative exchange of State property as stipulated in Article 14 of the former State Property Act, which states that the State Property in the port area shall be transferred to the Ministry of Transport and Maritime Affairs to the Ministry of Transport and Fisheries.

(2) At the time of the above administrative exchange, the instant land was continuously used for free use by the Korea National Railroad, and the Plaintiff created CY, which was approved by the Korea National Railroad, donated it to the Korea National Railroad, and used it again, and the Plaintiff paid the usage fees by sub-lease. On January 1, 2005, CY was established by the Intervenor as an operating asset in kind in the Intervenor, and thereafter, the Plaintiff continuously occupied and used the land by paying the usage fees to the Intervenor.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 3-1 through 3, Eul evidence No. 17, the purport of the whole pleadings

D. Determination

(1) The facts that the Plaintiff concluded a CY use contract and used CY on the ground of the instant land with the Korea Railroad and the Intervenor are as seen earlier. Even if the Plaintiff donated CY to the Korea Railroad, it is reasonable to view that the Plaintiff was the Plaintiff as the person who occupied CY and the instant land, as long as the Plaintiff continued to use CY. Thus, the Plaintiff’s assertion that the Plaintiff did not occupy the instant land is without merit.

(2) According to the above facts, even though the state invested in kind in the intervenor, it cannot be deemed that the land of this case, which is the site, was invested in kind, or was invested in kind in kind. Since the right to use the land of this case, which is the site of CY, cannot be deemed as a subordinate right of CY right, the plaintiff's assertion also is without merit.

(3) According to Article 4 (1) of the Korea Railroad Corporation Act, notwithstanding the provisions of the State Property Act, the State shall make an investment in kind in the Corporation with the operation assets under Article 22 (1) 1 of the Framework Act on Railroad Industry Development, and Article 6 (1) of the Addenda of the Korea Railroad Corporation Act shall comprehensively take over the rights and obligations arising from the assets invested in kind at the time of its establishment by the intervenor pursuant to Article 4, and Article 6 (2) of the Addenda of the Korea Railroad Corporation Act provides that the acts performed by the Korea Railroad Corporation established pursuant to the Korea Railroad Corporation or the Korea High-Speed Railroad Corporation Act before the establishment of the Corporation with respect to the assets invested in kind pursuant to Article 4 and the acts performed against the Korea Railroad Corporation or the Korea High-Speed Railroad Corporation shall be deemed as the acts of construction or construction. Thus, the rights and obligations of the intervenor comprehensively taken over by the State pursuant to the above provisions shall be limited to the rights and obligations of the plaintiff with respect to the assets invested in kind by the State. Therefore, unless there is no evidence to recognize that the intervenor made an investment in kind of the land subject to imposition.

(4) Article 51(1) of the State Property Act provides that an indemnity amounting to 120/100 of the loan charges or usage fees of the pertinent State property shall be collected from a person who occupies, uses, or benefits from the State property without obtaining permission for the lease, use, or profit-making of the pertinent State property under the Act. The purport of collecting indemnity in lieu of the loan charges or usage fees is that, in a case where the occupation, use, or profit-making of the pertinent State property is performed without any legal title, the ordinary loan charges or usage fees shall not be collected. Therefore, the said provision does not apply to a person who is in a legal position to justify occupancy, use, or profit-making (see, e.g., Supreme Court Decision 91Nu52

As to the instant case, as recognized earlier, CY, as the Plaintiff created and donated it to the Korea Railroad Corporation, was established by the Intervenor, and the Intervenor acquired ownership by investing in kind, but the instant land, which is the land of CY, was excluded from the subject of investment in kind under Article 4(3) of the Korea Railroad Corporation Act, was not included in the operation assets under Article 4(3) of the Korea Railroad Corporation Act, and became owned by the State even after the Intervenor’s establishment, and the Intervenor was not subject to the Act on Special Cases Concerning the Operation of State-Owned Railroad, and thus the title of the land was lost

However, as follows, in order to enhance the expertise and efficiency of the above disposition, the Railroad Corporation was abolished based on the grounds of the Korea Railroad Corporation Act and the Act on Special Cases Concerning the Operation of State-Owned Railroad was not applied as the Intervenor was established. However, the participant did not take the procedure for applying for permission for use or profit-making of the land subject to this case pursuant to Article 14 of the former Korea Railroad Corporation Act in the process of specifically transferring and transferring the property of the Korea Railroad Corporation, and thus the participant lost the title to use the land of this case. If the land was properly transferred to the Plaintiff, the State appears to have used the land of this case in light of the Intervenor’s purpose of establishment and the operation assets acquired by the Korea Railroad Corporation. ② The current status of the land of this case and the contents of the possession and use of the land of this case are not changed, and the defendant was also aware of such circumstances, ③ the compensation imposed by the Defendant was illegal after the Plaintiff’s establishment and use of the land of this case in addition to the Plaintiff’s usage or profit-making status of the land of this case.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.